(dissenting).
I prefer to state my position separately-
On or about October 13, 1960, Goldie D. Killough had been tracked by her husband, this appellant, to a house where he suspected she had engaged in an illicit affair with another man. He heard her laughing in an upstairs bedroom, although occupants of the house denied she was there. Her car was outside, and rather than make trouble there, he left to give her a chance to depart quietly. She reached home before her husband, undressed and went to bed. As she lay there, pretending to be asleep, her husband stood over her, talking to her. She ignored him. He opened her pocketbook and found what he deemed ample corroborating physical evidence of her mis*261conduct. Enraged, he throttled her. Goldie Killough, a small woman, struggled for a while, but Killough succeeded in strangling her. He covered her body with a sheet, and that evening, placed it in the trunk of her car. He then passed his girl friend’s house, drove to a secluded spot in Northeast Washington, and in a field, Killough concealed the body under a pile of debris.
No witness could testify that Killough did any of these things. No one knew what had happened to Goldie Killough, and no one could know unless Killough should narrate the facts.
My colleagues say that Killough’s admissions of such facts after he had received judicial caution from the Commissioner may not be utilized as evidence against him, despite later substantiation and corroboration of the appellant’s disclosures.
In McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Supreme Court pointed out that it is the duty of the trial court to entertain a motion for the exclusion of evidence said to have been unlawfully obtained and to hold a hearing to determine whether such motion should be granted or denied. The trial judge in this case explicitly followed that directive. He excluded a confession made by Killough on October 25, 1960, before he had been presented before the Commissioner. In an able opinion, United States v. Killough, 193 F.Supp. 905 (D.D.C.1961), Judge Youngdahl developed for us the course of the hearing conducted by him. He made findings of fact and drew conclusions of law. Those findings are supported by substantial evidence of record and should not be disregarded unless shown to be clearly erroneous.
The trial judge found, that when Kil-lough had been brought before the Commissioner, the deputy clerk — who is now the United States Commissioner — advised Killough that he had the right to refrain from making any statement; that any statement he made could be utilized as evidence in a trial against him; that he was entitled to retain counsel; that he was entitled to a preliminary hearing at which either he or his attorney could cross-examine; and that he was entitled to a continuance in order to retain counsel. Killough received similar advice from the late United States Commissioner Splain.
The previous day, October 24, 1960, when properly questioned at headquarters while the police were attempting to solve the mystery of Goldie Killough’s disappearance, Killough would neither deny nor admit killing his wife. The trial judge found he had then asserted “a right to refrain from giving statements of a self-incriminatory nature.”1
*262The day following Killough’s appearance before the Commissioner, a minister and an undertaker went to the jail. Kil-lough’s friend, Miss Holmes, had already been there to see Killough. She left Kil-lough with the intention of securing a lawyer for him.
When Killough on October 24th left Miss Holmes’ residence, he brought with him a suitcase. A police lieutenant on October 26th desired to clear up for the property clerk, the matter of disposition of the suitcase. As a member of the homicide squad, it was his duty also to arrange to have Killough release to the undertaker Goldie Killough’s body, then at the morgue. The officer went to the jail accordingly, filled out a form on which Killough noted his consent to an interview, and Killough was brought by the jailers to the jail rotunda. There, a lawyer known to Killough shook hands with him, called him by name, and said he had heard about Killough’s trouble and felt badly about it. The lawyer added that if there was anything he could do for Killough, he would be glad to do it. The lawyer shook hands with the police lieutenant, and presently went about his business. Killough told the officer he did not wish to use that lawyer.
Killough signed the receipt for the property clerk. He signed the necessary document for the release of his wife’s body to the undertaker there present.
Before Killough ever saw the United States Commissioner he knew what his rights are. The police additionally warned him. Thereafter, particularly, the Commissioner’s clerk and the Commissioner advised him, in full and complete compliance with the requirements of Rule 5, as the trial judge found.
Against that background the trial judge further found that there was no compulsion exercised with respect to any statement made by Killough. None could have been applied under the circumstances, the trial judge said, adding, “Defendant was free to end the conversation at any time.” The trial judge further noted:
“The Court — which itself asked Lt. Daly the questions whose answers would have laid the foundation for [a charge of a deliberate police attempt to subvert the Rules] - — is satisfied that the lieutenant testified truthfully in stating that he did not go to the jail on the 26th to secure a reaffirmation of the invalid confessions and that he had not spoken to the U. S. Attorney’s Office about them before going.”
The trial judge permitted the statements made by Killough at the jail on the 26th to be received in evidence against him. Those are the statements which, corroborated from various sources, established Killough’s guilt. The trial judge in the light of all of the evidence, reached the following conclusions:
“First, defendant specifically renounces any claim that he was physically maltreated during the period of ‘unlawful’ detention. Thus, he did not require a significant time period after commitment to recover his reflective powers, if, indeed, he had ever lost them. Second, following the preliminary hearing and his meeting with Lt. Daly, defendant was permitted two conversations with his friend Miss Holmes. Third, the time period which passed between the preliminary hearing and the second confession was over twenty hours. Fourth, defendant’s conversation with the lieutenant prior to his actually making the second confession indicated that he had been reflecting on his crime. All these factors support the Court’s previously expressed conclusion that during this period defendant had a resurgence of guilt feelings which prompted his desire to confess anew, and support its present conclusion that such confession came after adequate time for ‘deliberate reflection.’ ” 2
*263I think the District Judge ruled correctly and in accordance with our law.3 The Supreme Court of the United States has twice refused to review our statement of the applicable principle. Once an accused has received “judicial caution,” he is free to talk or not. If he voluntarily admits his crime, the Supreme Court has said, citing many cases, his confession may be received against him, “although it was made to police officers, while in custody, and in answer to an examination conducted by them.”4
A majority of my colleagues are, in my view, failing to follow the rule of law which should here control. Although the books are filled with cases to the contrary, their theory carried to its logical conclusion, would even preclude a plea of guilty by one who so pleads because, and when, he knows he had previously during a period of unlawful detention “let the cat out of the bag.” The anomaly my colleagues create is the more striking in that no decided case is cited for their position.5
I yield to no one in a proper concern for the rights of the accused. Even before Mallory, I wrote for the court in the first Watson case,6 where we barred a confession extracted during a period of unlawful detention. After Mallory, I wrote the second Watson opinion giving effect to the Mallory rule since the accused had not been arraigned until “judicial caution had lost its purpose.” 7
Rule 5, in short and as here pertinent, requires that the accused be advised of his rights. But the trial judge, as noted, found that Killough, throughout, was well aware of his rights. By October 26th, moreover, he had received “judicial caution” — and nevertheless freely unburdened himself to the officer. Unless “serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted,”8 as Judge Hand put it, we should affirm.
It should be noted that Goldie Killough was already dead some five days before Killough, on October 18, notified police she was missing. Very properly, the police sought various items of information, especially since Killough said his wife had left on the 13th after an argument. Killough took police to where he had parked his wife’s car after removing his wife’s body. The officer — but without then telling Killough — had noticed stains in the car which upon later analysis turned out to be human blood. An appointment was made for Killough to come to headquarters on the 19th to discuss the missing persons report. He did not keep the appointment. No more was heard from him until the morning of the 24th when Miss Holmes telephoned that he was at her home.
Commencing about 9:30 that day, Lieutenant Daly questioned him for about 2y2 hours. While Killough was out of town, the officer had checked out certain *264earlier information supplied by Killough, had found it incorrect, and told him so. Killough that day was told about the blood stains found on the mat in the car. He had that night to think over the whole situation.9
All evidence of what Killough had said prior to his appearance before the Commissioner at 3:43 P.M. on October 25th was excluded by the judge, although it is clear that in some jurisdictions, much if not all of such evidence would have been received. For example, other circuits have not gone as far as we in limiting even prehearing admissions which followed developments in the course of reasonable investigation. The Second Circuit after reading and applying the precedents, including our Goldsmith case, concluded :
“We believe that when a continuing process of essential investigation is being carried out expeditiously, when the suspect is advised of his constitutional rights, and when there is no reason to believe that the procedures being followed are used merely as an excuse for delay during which a confession can be extracted, detention is not ‘arrest,’ and in any event is not ‘unnecessary,’ and an uncoerced confession so obtained is admissible. See Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Georgetown L.J. 1, 20 (1958). Our justification for so holding is the overwhelming public interest and the plain unvarnished fact that without such power society would often find itself helpless to solve crimes and protect its members. There is no policy in the law or in common sense which compels us to deprive the government of a confession which is the fruit of expert and speedy investigation carried out with due regard to the rights of the suspect.”10 (Emphasis mine.)
I am persuaded that when Killough told what he had done, he did so willingly, with full knowledge of his rights, even before his presentment at the Commissioner’s office. Thereafter, in any event, the rights of the accused were fully protected. I am convinced that since the purpose of the Rule was fully met, a fair and impartial administration of criminal justice requires that we affirm the conviction.
It will be remembered that Lieutenant Daly had gone to the jail the day after Killough’s appearance before the Commissioner. Killough then agreed to sign a release of his wife’s body. Thereupon, an undertaker testified, he saw Killough at the jail and asked him to sign the release that he might take the remains to a funeral home for burial. “Did he sign the release at that time? A. Yes, he did.” Killough asked when the body, then at the morgue could be viewed. It was stipulated in open court that the morgue turned over the body which the coroner had viewed to the undertaker for whom Killough had signed the release.
Thus ran the Government’s case. The judge completely and properly instructed the jury as to the essential elements of the homicide, with the lesser included offense of manslaughter. The jury found Killough guilty of manslaughter. I would affirm that conviction. I am not persuaded that the efforts of society to protect itself should be rendered futile after this accused, fully advised of his rights, voluntarily admitted that he in secret, had perpetrated this gruesome crime.
*265I am authorized to state that Chief Judge Miller and Circuit Judges Bastían and Burger concur in the foregoing.
. For some ten days police had been investigating. Killough on October 18, I960, made an appointment to meet the officer in. charge the following morning. Instead, he left town. About a week later, Killough’s girl friend, a Miss Holmes, called the police and told them he was at her house. They asked Killough to come with them to headquarters. There an officer informed Killough of the results of the investigation over the past week. The officer asked if he had killed her. The record shows:
“He would not deny that. But he would not admit it. We asked him if he knew -where his wife’s body was, and he did not answer that question. He said that he knew his Constitutional rights, he did not have to answer that question, that would incriminate him, and he wouldn’t answer it at that time.
* * * * *
“The Court: When did he make the statement that he didn’t want to answer any questions on the ground it might incriminate him?
“The Witness: All during our interrogation.
“The Court: In the afternoon?
“The Witness: Even from the start. He would answer certain questions, but when you brought up as to the possibility of the death of his wife, if he knew his wife’s whereabouts or if he harmed her himself, he told us that he knew his Constitutional rights, that he didn’t have to answer any question that would incriminate him and he did not want to answer that question.”
Killough did not testify.
. United States v. Killough, 193 F.Supp. at 921.
. Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335, cert. denied sub nom. Carter v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Jackson v. United States, 109 U.S.App.D.C. 233, 285 F.2d 675 (1960), cert. denied, 366 U.S. 941, 81 S.Ct. 1666, 6 L.Ed.2d 852 (1961).
. Tiang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3 (1924); and see United States v. Carignan, 342 U.S. 36, 45, 72 S.Ct. 97, 96 L.Ed. 48 (1951); McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 87 L.Ed. 819 (1943).
. See Jackson v. United States, supra note 3, 109 U.S.App.D.C. at 237, 285 F.2d at 679.
. Watson v. United States, 98 U.S.App.D.C. 221, 226, 234 F.2d 42, 47 (1956).
. Watson v. United States, 101 U.S.App.D.C. 350, 353, 249 F.2d 106, 109 (1957); and see the first Jackson v. United States, 106 U.S.App.D.C. 396, 273 F.2d 521 (1959), where again we recognized the importance of “judicial caution,” to be compared with Jackson v. United States, supra note 3. Cf. Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (1962).
. Di Carlo v. United States, 6 F.2d 364, 368 (2 Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925).
. By 11 A.M. the following day, after a 45 minute conversation with a deputy chief, Killough had confessed the killing, and shortly thereafter he guided the officers to where he had concealed the body. There was no suggestion of mistreatment at any time.
. United States v. Vita, 294 F.2d 524, 534 (2 Cir. 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); cf. Tillotson v. United States, 97 U.S.App.D.C. 402, 405, 231 F.2d 736, 739, cert. denied, 351 U.S. 989, 76 S.Ct. 1055, 100 L.Ed. 1502 (1956).